HQ 224611: Protest 4101-92-100081; refund of voluntary tender; 19 U.S.C.1514(a); U.S. v. Utex International; HQ 223089; AmbassadorDivision of Florsheim Shoes v. U.S.; Hambro AutomotiveCorporation v. U.S.; 19 U.S.C. 1401a; transaction value; priceactually paid or payable; engineering services.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 224611

                        January 17, 1993

ENT-1-03-CO:R:C:E 224611 AJS

CATEGORY: Entry

District Director of Customs
Protest Section
55 Erieview Plaza
Cleveland, Ohio 44114

RE: Protest 4101-92-100081; refund of voluntary tender; 19 U.S.C.
1514(a); U.S. v. Utex International; HQ 223089; Ambassador
Division of Florsheim Shoes v. U.S.; Hambro Automotive
Corporation v. U.S.; 19 U.S.C. 1401a; transaction value; price
actually paid or payable; engineering services.

Dear District Director:

     This is our decision in protest 4101-92-100081, dated
November 27, 1992, concerning a voluntary tender of duties.

FACTS:

     On December 2, 1991, the protestant imported machinery for
assembling electric lamps.  On July 22, 1992, a voluntary tender
was received in the amount of $6,771.67 based on some additional
charges for this machinery.  Includ-ed in this voluntary tender
were charges for engineering services performed on this equipment
after its importation.  The protestant claims that the voluntary
tender covering these services was based on an incorrect
interpretation of Customs valuation law.  On October 30, 1992,
Customs liquidated the entry covering the subject merchandise
with the voluntary tender included as part of the liquidated
amount. 

ISSUE:

     Whether the refusal to refund the subject voluntary tender
is protestable pursuant to 19 U.S.C. 1514.  More specifically,
whether the subject voluntary tender may be refunded.



                               -2-

LAW AND ANALYSIS:

     Initially, we note that the protest was timely filed
pursuant to 19 U.S.C. 1514(c)(2).  The subject entry was
liquidated on October 30, 1992, and this protest was filed on
November 27, 1992.

     19 U.S.C. 1514(a) provides that decisions of the appropriate
customs officer, including the legality of all orders and
findings entering into the same, as to-

     (1) the appraised value of merchandise;

     (5) the liquidation or reliquidation of an entry, or any     
  modification thereof:

shall be final and conclusive upon all persons (including the
United States and any officer thereof) unless a protest is filed
in accordance with this section, or unless a civil action
contesting the denial of a protest, in whole or part, is
commenced in the United States Court of International Trade in
accordance with chapter 169 of Title 28 within the time
prescribed by section 2636 of that title. 
     
     In this case, the protestant submitted a voluntary tender
for additional duties which they believed were owed on charges
for engineering services performed on the subject merchandise in
the United States.  Customs liquidated the entry covering this
merchandise and included the voluntary tender as part of the
liquidated amount.  Your district refused to refund the voluntary
tender claiming it was not protestable under section 1514.  We
disagree with this conclusion for the following reasons.  All
findings involved in a district director's decision merge in the
liquidation.  R. Sturm, Customs Law & Administration, section 8.3
at 32 (3d ed. 1982); See also United States v. Utex International
Inc., 6 Fed. Cir. (T) 166, 168 (1988).  Liquidation of an entry
constitutes the final computation by Customs of all duties
accruing on that entry. See generally, Ambassador Division of
Florsheim Shoes v. United States, 748 F. 2d 1560, 1652 (Fed. Cir.
1984).  It is the liquidation which is final and subject to
protest, not the preliminary findings or decisions of customs
officers.  Customs Law at 32.  Therefore, the findings which
included the subject voluntary tender as part of the liquidated
amount merged in the liquidation, which is itself subject to
protest under section 1514(a)(5).  This conclusion is supported
by HQ 223089 (September 16, 1991) in which Customs ruled that
additional duties tendered prior to liquidation of a consumption
entry became part of the final computation by Customs of all
duties accruing on that entry.   

                               -3-

In addition, the courts have stated that errors which arise from
mistaken value information supplied to Customs are also
protestable under section 1514.  Hambro Automotive Corporation v.
United States, 81 Cust. Ct. 29, 30, C.D. 4761 (1978), aff'd 66
CCPA 113, 120, C.A.D. 1231 (1979).  The subject protest involves
this type of error.  Thus, the voluntary tender is also
protestable under section 1514(a)(1) as an error concerning the
appraised value of merchandise.  
                                
     Merchandise imported into the United States is appraised in
accordance with section 402 of the Tariff Act of 1930, as amended
by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401a).  The
preferred method of appraisement is transaction value defined as
the price actually paid or payable for the 
merchandise when sold for exportation to the United States plus
certain enumerated additions.  19 U.S.C. 1401a(b)(1).  For the
purposes of this protest we assume that transaction value is the
appropriate basis of appraisement.

     The term "price actually paid or payable" is defined as the
total payment (whether direct or indirect . . .) made, or to be
made, for imported merchandise by the buyer to, or for the
benefit of, the seller.  19 U.S.C. 1401(b)(4)(A).  However,
transaction value does not include any reasonable cost or charge
that is incurred for the construction, erection, assembly, or
maintenance of, or the technical assistance provided with respect
to, the merchandise after its importation into the U.S., provided
such costs or charges are separately identified from the price
actually paid or payable.

     With regard to the instant protest, the buyer maintains that
payments to the seller for engineering services related to the
installation of imported machinery are not included in the
transaction value of the merchandise.  The work was performed by
the seller at the buyer's Euclid, Ohio plant.  Invoices from the
seller to the buyer confirm that payments were for technical
assistance rendered by the seller.  Accordingly, since the costs
or charges at issue were incurred for technical assistance
performed in the U.S., and were separately identified from the
price actually paid or payable, they are not included in the
transaction value of the imported merchandise.  Consequently, the
subject  voluntary tender concerning these costs should be
refunded.

HOLDING:

     The protest is granted.  The refusal to refund the subject
voluntary tender is protestable under either 19 U.S.C. 1514(a)(1)
or (5).  In addition, the subject voluntary tender should be
refunded pursuant to 19 U.S.C. 1515(a). 

                               -4-

     In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed, with the Customs Form
19, by your office to the protestant no later than 60 days from
the date of this letter.  Any reliquidation of the entry in
accordance with the decision must be accomplished prior to
mailing of the decision.  Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.  


                                 Sincerely,


                                 John Durant, Director